State v. Moore, 123351

Background

Moore pleaded guilty to aggravated indecent liberties (sexual intercourse with a 2‑year‑old) and was sentenced Feb. 24, 2005 to 494 months after being designated a persistent sex offender (criminal history score A).
Three prior convictions at issue: 1984 Oregon first‑degree burglary; 1969 Kansas juvenile adjudication under G.S. 1949 §38‑711 (molesting); 1994 Oklahoma lewd molestation (used to designate persistent sex offender, not counted in 2005 score).
Procedural history: multiple appeals and collateral motions (Moore I–IV); Kansas Supreme Court in Moore III (2018) applied Wetrich and vacated the 2005 sentence, producing resentencings in 2018 and 2020 where the court again recalculated Moore's criminal history.
Central legal question: for a motion to correct an illegal sentence, does one apply the law in effect at the time of the original 2005 sentencing or the law in effect at resentencing (e.g., Wetrich)?
Holding: the legality of Moore’s sentence is judged by the law in effect at the original 2005 sentencing (Vandervort standard). The district court correctly classified the 1984 Oregon burglary and the 1969 juvenile adjudication as person felonies; the 1994 Oklahoma conviction is not material to the computed 2005 score. Sentence affirmed.

Issues

Issue	Plaintiff's Argument (Moore)	Defendant's Argument (State)	Held
Applicable law/date for judging legality	Resentencing controls; Wetrich (2018) should apply	Law at original sentencing (2005) controls; Vandervort (2003) applies	Law at time of original sentence controls; Vandervort governs (per Clark III/Murdock II)
Constitutional Apprendi challenge	Wetrich required to avoid judicial fact‑finding; Apprendi violation otherwise	Apprendi claim not cognizable in motion to correct illegal sentence; Wetrich is statutory change	Apprendi claim unavailable here and lacks merit; Wetrich is statutory construction, not a constitutional mandate
Classification of 1984 Oregon burglary	Must be nonperson under Wetrich (identical/narrower elements)	Under Vandervort the Oregon statute is comparable to KS burglary and is a person felony	Classified as person felony under Vandervort; any mandate conflict would be futile to remedy
1969 Kansas juvenile adjudication	State failed to prove validity (counsel/which statute); if counted, should be nonperson or decayed	Moore waived objections at 2005 sentencing; comparable KS offenses (indecent liberties/solicitation) are person felonies; person adjudications do not decay	Moore waived burden; adjudication comparable to KS person offenses; does not decay; properly scored as person felony
1994 Oklahoma lewd molestation	No proof of subsection; too broad to be a KS person felony	That conviction was not used to compute the 2005 criminal history and was used only to designate persistent sex offender; issue is moot	Moot: the Oklahoma conviction did not affect the 2005 criminal history calculation and is not contested as basis of persistent‑offender designation

Key Cases Cited

State v. Clark, 313 Kan. 556 (Kan. 2021) (holding law at time of original sentencing controls review in a motion to correct illegal sentence)
State v. Wetrich, 307 Kan. 552 (Kan. 2018) (adopted an "identical‑or‑narrower" elements test for comparability of out‑of‑state offenses)
State v. Vandervort, 276 Kan. 164 (Kan. 2003) (comparability requires the "closest approximation," not identity)
State v. Murdock, 309 Kan. 585 (Kan. 2019) (Murdock II) (confirmed legality of sentence is fixed at sentencing and later changes in law may be a change in law)
State v. Keel, 302 Kan. 560 (Kan. 2015) (defining person versus nonperson offenses under KSGA)
State v. Roberts, 314 Kan. 316 (Kan. 2021) (placing burden on offender in collateral proceedings to prove a prior conviction invalid if not objected to at sentencing)
State v. Weber, 309 Kan. 1203 (Kan. 2019) (concluding Wetrich constituted a change in the law)
State v. Cheeks, 313 Kan. 60 (Kan. 2021) (discussing mandate rule, futility, and whether deviation from a mandate is reversible error)